Sue her–ahem, them

The interesting case of West v. Rieth, et. al. has come across the transom and it’s worth the read.

West alleges that the Federal Defendants, who with one exception were also U.S. Marine Corps service members at all relevant times, conspired to lodge false complaints and accusations of sexual harassment and sexual assault against him. According to the complaint, such false allegations were personally motivated by a desire to remove West and another individual from their supervisory positions and to obtain favorable transfers.[3]Investigations ensued, and West was court-martialed with respect to the allegations lodged by Rieth, Parrott, and Allen. The allegation that West raped defendant Johnson was not part of the court-martial because an investigator found that such allegation was not credible.[4]

At the court-martial in November 2014, defendants Rieth, Parrott, and Allen testified under oath against West, which testimony West alleges was false.

West was found not guilty of the majority of charges arising out of the alleged sexual assault and harassment directed towards Parrott, Harper, and Rieth.[6] He was found guilty of a subset of charges based on (1) certain sexually suggestive comments made to Allen[7] and (2) obstructing justice by conspiring with another Marine to provide Allen with copies of their text messages in an attempt to influence her testimony.[8] West alleges that as he was being escorted to serve a sentence of thirty days in confinement as a result of his convictions, “defendants Rieth, Parrott, and Allen, spit upon” him.

It’s a scope of employment and immunity case.

Is a complaining witness acting within the scope of employment when making a sexual assault or harassment complaint?

Is a complaining witness acting within the scope of employment when making a false sexual assault or harassment complaint?

First we look to state law because “Judicial review of the scope-of-employment certification “requires the application of the law of the state in which the employee’s conduct occurred.” Williams, 71 F.3d at 505.”

According to the government, the Federal Defendants, as employees of the Marine Corps, “were required to take the actions necessary to report and address any issue of sexual harassment and/or sexual assault with the appropriate United States Marine Corps officials.”[14] The government also argues that the U.S. Attorney’s certification “was appropriate because a determination had been made by the appropriate federal officials that there was enough credible evidence that the named Federal Defendants were the victims of workplace sexual harassment and/or sexual assault to refer charges to the General Court Martial.”[15] The implicit premise of the government’s argument in support of the scope-of-employment certification is that the Federal Defendants had a legitimate basis for reporting that West sexually assaulted and/or sexually harassed them and then testifying to those allegations at the subsequent court-martial.

The government is plainly correct that reporting sexual harassment and/or sexual assault by another Marine is within the reporting Marine’s course and scope of employment. Both parties have submitted Department of Defense documentation regarding the programs established to facilitate the reporting of such allegations, which documentation establishes that the military’s “goal is a culture free of sexual assault, through an environment of prevention, education and training, response capability . . ., victim support, reporting procedures, and appropriate accountability.”[16] West concedes that “sexual assault on a service member is disruptive and destructive to the military and violates its core values in a fundamental way.”[17]

The Court agrees that reporting sexual assault and/or sexual harassment would plainly be “primarily employment rooted” and “reasonably incidental to the performance of the employee’s duties.” See White, 419 F. App’x at 442. Likewise, use of a system expressly created by the Marine Corps to receive and handle such complaints is sufficiently “on the employer’s premises” and “during the hours of employment” to satisfy those factors, as would be testimony by a Marine at a court-martial instigated by such reports.

However, West alleges that the underlying allegations against him were fabricated, and that making false reports of sexual assault and testifying falsely as to those allegations cannot be characterized as within the scope of the employment of a U.S. Marine Corps service member.[18] West forcefully argues that completely false allegations made by one Marine against another solely on the basis of a personal vendetta and for personal gain would not be “reasonably incidental to the performance of the employee’s duties,” nor could such statements have “the purpose of serving the master’s business . . . to any appreciable extent.” Id.[19]

This case is an excellent read, especially for those of us considering whether they have the right case to sue a complaining witness who makes a false claim of sexual assault or harassment. Such cases are not to be lightly pursued and require a significant degree of proof of falsity. The need for a very thorough package of proof is illustrated in this case.

The Court concludes that West’s evidence consists of factual nitpicking, his personal “spin” on facts which equally tend to suggest that some of the allegations were well-founded, and secondhand credibility determinations. His submission falls well short of carrying his burden to establish as a factual matter that the allegations lodged against him by the Federal Defendants were false[.]

Bottom line, and I think correctly, you are not going to win a civil suit in a she said-he said case or the ubiquitous drunk sex case.